As was apparent at last week's discussion of the Vergara case between Fordham's Mike Petrilli and AEI's Mike McShane, the current generation of school reformers is generally dismissive of legal cases in search of school improvements.

Lawsuits don't work, or are at best crude measures compared to policies and statutes.Or, theyre good for quantity-related issues (like funding) but not for quality-related issues (like access to effective teaching). Check out Petrilli and McShane's responses to my Twitter query at the 30 minute mark.

They may be right. I'm no legal scholar, and it's certainly conventional wisdom that the wave of equity and adequacy cases of the 1970s and 1980s didn't result in any wholesale improvements in American education. Some would say the same about civil rights cases.

But the Vergara case, its successors, and a whole host of non-education advocacy (same-sex marriage, for example), suggest that the conventional wisdom might be worth reconsidering, or at least examining.

Historically, it seems to me that legal cases have played an important role in shaping education -- perhaps as much or more so than laws that have been passed. I don't see any big advantage of one forum over the other.

Far as I can tell, there's nothing so special or particularly powerful about the laws legislators and elected executives pass -- and more than a few obvious situations where the political process has been jammed up and seems unlikely to provide much change.

Just as important, legal cases can have multiple indirect effects, even if they don't reach a quick or actionaable resolution. They can raise awareness of an issue, or pressure legislatures and others to take long-neglected action.

And, while legal cases are no magic wand, it seems to me that they've addressed all sorts of school-related issues regarding access, funding, quality, and the like. Some are brought by a group of plaintiffs, others by public agencies. In a few school-related situations (special education, if I understand correctly), individuals have been given direct access to the courts to get their childrens' needs met.

A few of us -- McShane, E4E's Matt Barnum, the Education Law Center, and Rutgers professor Bruce Baker -- tried to hash this out on Twitter last week, but it was pretty clear that the forum was insufficient and most of us lacked deep knowledge about the impact of legal cases (class action lawsuits and the like) on schools.

But I liked one thing Baker had to say: "The substance of the reform is what matters - sustained & substantial, court ordered or not."

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Alexander,
You nailed it:

Far as I can tell, there's nothing so special or particularly powerful about the laws legislators and elected executives pass -- and more than a few obvious situations where the political process has been jammed up and seems unlikely to provide much change.

I suspect most supporters of Vergara believe the same thing, even though they would never say it.

The problem, of course, is that that is a fundamental violation of our constitutional democracy. We're a nation of laws not men.

Suits claiming to advance civil rights based on constitutional principles should be based on constitutional principles. Just having an opinion about how to make the world fair, no matter how sincere, is not grounds for a suit grounded in the Constitution.

I've worked with, and I have interviewed, many great civil rights legal activists and once I found an overwhelming agreement on one principle. We would lose our credibility if we didn't have a strong constitutional and factual basis. There is a real danger that these suits, that are just new politicized venues for old-fashioned politics, are likely to poison the well, diminishing the power, force and, yes, the majesty of the law for cases where there is a real civil rights case.